Border Security Fee terminated for time being

The existing “border security fee” which was paid to U.S. Department of Homeland for filing H-1B and L-1 non-immigrants petitions was terminated on October 1, 2015. This termination has brought relief to both high-volume H-1B and L-1 filers and cost-sensitive employers. Employers planning to take advantage of the situation should assess their staffing needs that will reduce their employees’ non-immigrants sponsorship costs, for next six months and should also plan to file petitions that were earlier subjected to this fee.

An amendment by Public Law 111-347 to Section 402 of Public Law 111-230 mandated a special border security fee payment by certain employers for filing H-1B and L-1 non-immigrants petition. This amended law was applicable only to employers with 50 or more employees in the United States out of which more than 50 percent were H-1B or L-1 non-immigrants. However, the border security fee was set to expire on September 30, 2014, it was extended for an year due to President Obama signing of James Zadroga 9/11 Health and Compensation Act of 2010 (ZHCA) and was terminated only on October 1, 2015 and has yet not been reauthorized.

The employers were subjected to heavy government fees for filing H-1B and L-1 petitions and the base filing fee was $325 along with a $500 fraud prevention and detection fee while sponsoring new employees.

Under the American Competitiveness and Workforce Improvement Act of 1998, for filing under the H-1B category, the petitioning employer was required to pay $1,500 as employer sponsorship fee, (for more than 25 full-time employees) or $750 (for less than 25 full-time employees). In case of second or subsequent request to extend employee’s stay, certain exemptions were allowed.

Before October 1, 2015, the employers were required to pay additional $2,000 for border security fee in connection with H-1B sponsorship (in case of 50 or more employees and having 50 percent H-1B or L-1 non-immigrants) and $2,250 for L-1A and L-1B petitions.

Sen. Charles Schumer introduced the bill for border security fee intending to provide funds for securing the country’s southwestern border and aiming to reduce the availability of employment visas to companies, referred to as “multinational temp agencies”. As various countries were affected by this bill, especially India, so Sen. Schumer explicitly stated that the fee was not meant to target employers of any particular country or region.

The National Foundation for American Policy (“NFAP”), Washington think-tank, stated that the availability of H-1B and L-1 visas was unfairly restricted by Congress through the border fee which has caused the United States’ treaty and trade commitments under the General Agreement on Trade in Services being violated.

Since the existing regulations require the new petitions to be filed six months prior to the actual need, the employers who can assess the same must take advantage of the cost cutting in the fee and apply. However, with the expiration of the temporary budget on December 11, 2015, the border security fee may be reauthorized under the ZHCA in late 2015 or early 2016.


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